Benedict v. Arnoux — 38 N.Y.S. 882

Majority

p. 882

(1 N. Y. Ann. Cas. 407.)

BENEDICT et al. v. ARNOUX et al.

(Supreme Court, Special Term, New York County.

January, 1895.)

Headnote

Appearance—By Attorney—Procuring Extension op Time.

Under Code Civ. Proc. § 421, providing that defendant’s appearance must be made by serving on plaintiff’s attorney a notice of appearance, or a copy of a demurrer or of an answer, an attorney who asks, on behalf of defendant, for an extension of time to answer, does not thereby make a general appearance for defendant, and therefore the answer may be served by another attorney within the period of the extension.

Action by Elias C. Benedict and others, as executors of Edwin Booth, deceased, against George T. Arnoux, and Joseph Campbell, Emma Campbell, and Martha Campbell, as executors of .William Campbell, deceased, and Hannah Campbell and others, to foreclose a mortgage. Before the time to answer had expired an extension of time was obtained from plaintiffs’ attorney by Niles & Johnson, as attorneys for defendant Hannah Campbell. Afterwards they obtained a further extension of time, on application to one of the justices of the supreme court. Afterwards, within the period of the extension granted, an answer was served on plaintiffs’ attorney by Frank G. Wilde, as attorney for said defendant Hannah Campbell, and said answer was returned on the ground that said Wilde was not the attorney for said defendant. Defendant Hannah Campbell now moves to compel plaintiffs to accept the answer.

Granted.

Arnoux, Bitch & Woodford, for plaintiffs.

Frank G. Wilde, for defendants.

Since the adoption of the Code of Civil Pro-

cedure, it has been held in a number of cases that a general appearance of a defendant in an action cannot be made in any manner other than that prescribed by section 421 of that Code.^[1] Couch v. Mulhane, 63 How. Prac. 79, Arnoux, J.; Douglas v. Haberstro, 8 Abb. N. C. 230 ; Valentine v. Myers’ Sanitary Depot, 36 Hun, 201 . Most of the cases referred to by plaintiffs’ counsel, in which it was held that obtaining an extension of time to answer, or serving a

1 Code Civ. Proc. § 421, provides that “the defendant’s appearance must be made by serving upon the plaintiff’s attorney within twenty days after service of the summons, exclusive of the day of service of notice of appearance, or a copy of a demurrer, or of an answer.”

p. 883

notice of motion, was an appearance, or equivalent to it, were decided under the old Code of Procedure, and are not applicable. So far as the actual decisions went, neither Krause v. Averill, 4 Civ. Proc. R. 410, nor Davis v. Jones, 8 Civ. Proc. R. 43, appears to me to conflict with the cases above cited; but, if either does, it cannot be considered as a controlling authority.

It follows that the motion to compel plaintiffs’ attorneys to accept the answer of Hannah Campbell must be granted, with §10 costs to her, to abide the event, and that the motion for judgment must be denied, with §10 costs to said Hannah Campbell, and §10 costs to the defendant executors; such costs, in each case, to abide the event of the action.